matter of great public interest inasmuch as the sale of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn foists upon the unsuspecting public a hazard of the greatest severity, as past accidents and events have demonstrated. It is our belief that protection from such hazard to a great extent can be afforded by legislation having such objective. However, in the opinion of the Commission the provisions of this bill are not adequate to accomplish the objective sought. We believe that certain perfecting amendments are required in order to afford more complete protection to consumers and at the same time relieve unnecessary hardships to industry and provide a more effective plan for administration and enforcement of the legislation. We therefore make the following suggestions. 1. The bill deals only with highly flammable articles of wearing apparel and fabrics which are intended for use in the manufacture of wearing apparel with the express exception of hats, gloves, footwear, and interlining fabrics. In our opinion the scope of the legislation should be enlarged so as to cover highly flammable household products such as draperies, rugs, bedding, upholsteries, and children's toys. To accomplish this the term "household products" should be defined and should accompany the terms "wearing apparel" and "fabric" throughout the entire bill. 2. Subsection (e) of section 2 defines the term "fabric" as "any material (other than a filament or yarn) woven, knitted, felted, or otherwise produced from or in combination with any natural or synthetic fiber, film, or substitute therefor, when intended for use in the manufacture of wearing apparel * * In our opinion the clause "when intended for use in the manufacture of wearing apparel" should be revised to read: "which is manufactured, intended, or sold, for use as wearing apparel." 3. The provisions of subsections (a) and (b) of section 3 lack clarity and should be revised in the interest of more effective specification of the jurisdictional scope of the bill. In addition it would seem better draftsmanship to combine the two sections. The section would then read: "SEC. 3. The manufacture or delivery for introduction into commerce, or the sale, offer for sale, transportation, or distribution in commerce, or the manufacture, sale or offering for sale after shipment in commerce, of any article of wearing apparel or of any fabric which is so highly flammable as to be dangerous when worn by individuals is unlawful and shall be an unfair method of competition and an unfair act or practice in commerce under the Federal Trade Commission Act." In connection with this section we feel that the bill should carry an exemption of common carriers, contract carriers, and freight forwarders as provided in the Fur Products Labeling Act and the Wool Products Labeling Act. 4. Subsection (f) of section 2 defines the term "commercial standard" as "a trade standard for flammability established according to the procedures of the Commodity Standards Division of the United States Department of Commerce and promulgated by the Secretary of Commerce." Section 4, entitled "Standard of Flammability" provides: "SEC. 4. No article of wearing apparel or fabric shall be deemed so highly flammable under the provisions of this Act as to be dangerous when worn by individuals unless when tested under the conditions and in the manner prescribed therefor in the then applicable commercial standard promulgated by the Secretary of Commerce such article of wearing apparel or fabric exhibits rapid and intense burning as defined in that standard." Since violation of the act is made a crime and criminal penalties are provided therefor, the indefiniteness and uncertainty of the meaning of the "then applicable commercial standard" and "rapid and intense burning as defined in that standard" will make the constitutionality of the legislation doubtful. The due process clause of the Constitution requires that a criminal statute be sufficiently definite and certain so as to inform those who are subject to it what conduct on their part will render them liable to its penalties. In our opinion Congress should set forth in the statute a definite and certain standard based upon scientific tests conducted by the National Bureau of Standards and possibly other scientists or scientific organizations who are qualified to determine impartially an adequate standard of flammability. In our opinion such a standard so determined should then be stated affirmatively in the statute. In this connection we believe section 4 is also objectionable because it is written in the negative and would be difficult to administer. 5. In dealing with the administration and enforcement of the legislation by the Federal Trade Commission, subsections (a) and (b) of section 5 are inade quate for the reason that they are not sufficiently definite in conferring authority upon the enforcing agency and making available for enforcement of this act the powers that are specified in the Federal Trade Commission Act. The second and perhaps more serious deficiency lies in the fact that the language of this section does not bring into the bill the important element of having legislation preventive in character under which, through inspection, the possibilities of dangerously flammable textiles getting on the market may be forestalled. We believe subsections (a) and (b) of section 5 should be combined and revised to read: "SEC. 5 (a). Except as otherwise specifically provided herein, the provisions of this Act shall be enforced by the Federal Trade Commission under rules, regulations and procedure provided for in the Federal Trade Commission Act; (b) the Commission is authorized and directed to prevent any person from violating the provisions of section 3 of this Act in the same manner, by the same means and with the same jurisdiction, powers and duties as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of this Act; and any such person violating any provision of section 3 of this Act shall be subject to the penalties and entitled to the privileges and immunities provided in said Federal Trade Commission Act as though the applicable terms and provisions of the said Federal Trade Commission Act were incorporated into and made a part of this Act; (c) the Commission is authorized and directed to prescribe such rules and regulations as may be necessary and proper for purposes of administration and enforcement of this Act; (d) the Commission is authorized to (1) cause inspections, analyses, tests and examinations to be made of any article of wearing apparel or fabric which it has reason to believe falls within the prohibitions of this Act; and (2) to cooperate on matters related to the purposes of this Act with any department or agency of the Government; with any State, Territory or possession or with the District of Columbia; or with any department, agency or political subdivision thereof; or with any person." 6. With respect to injunction and condemnation procedures set forth in subsections (c) and (c) of section 5, it is recommended that this part of the legislation be placed in a separate division entitled "Injunction and Condemnation Proceedings." These subsections should be relettered (a) and (b) under a new section number. For the purpose of incorporating the changes heretofore recommended affecting the scope of the bill, and in the interest of having uniformity with similar provisions of the Wool Products Labeling Act and the Fur Products Labeling Act, we recommend that subsection (d) with respect to condemnation procedure be revised in the new subsection lettered (b) to read: "(b) (1). Any article of wearing apparel or fabric shall be liable to be proceeded against in the district court of the United States for the district in which found, and to be seized for confiscation by process of libel for condemnation, if the Commission has reasonable cause to believe such article of wearing apparel or fabric is being manufactured or held for shipment, or shipped, or held for sale or exchange after shipment, in commerce, in violation of the provisions of this Act. Proceedings in such libel cases shall conform as nearly as may be to suits in rem in admiralty, and may be brought by the Commission. In any such action the court upon application seasonably made before trial shall by order allow any party in interest, his attorney or agent, to obtain a representative sample of the article of wearing apparel or fabric seized. (2) If such articles of wearing apparel or fabrics are condemned by the court, they shall be disposed of, in the discretion of the court, by destruction, by sale, by delivery to the owner or claimant thereof upon payment of legal costs and charges and upon execution of good and sufficient bond to the effect that such articles of wearing apparel or fabrics will not be disposed of until treated in such manner that they will not be so highly flammable as to be dangerous when worn by individuals during the entire life of the product. If such articles of wearing apparel, or fabrics are disposed of by sale, the proceeds less legal costs and charges, shall be paid into the Treasury of the United States as n iscellaneous receipts.' 7. Subsection (b) of section 6 provides that "the violation of any provision of this Act shall, in addition to any other penalty provided by law, constitute an unfair method of competition within the meaning of section 5 of the Federal Trade Commission Act.' This subsection is not complete since it does not include "unfair or deceptive acts or practices" which were made unlawful by the Wheeler-Lea amendment of section 5 of the Federal Trade Commission Act. However, if section 3 is revised as heretofore recommended, subsection (b) of section 6 will not be needed and should be omitted. 20149-52-2 8. Subsection (c) of section 6 would constitute an unwarranted limitation upon the criminal provisions of the legislation. For this reason and in the interest of uniformity with similar provisions in the Wool and Fur Products Labeling Acts, we suggest that subsection (c) of section 6 be revised as subsection (b) to read: "(b) Whenever the Commission has reason to believe any person is guilty of a misdemeanor under this section, it shall certify all pertinent facts to the Attorney General, whose duty it shall be to cause appropriate proceedings to be brought for the enforcement of the provisions of this section against such person." 9. We believe the words "or Act of the United States", at the end of the first sentence of section 7 should be deleted in order to make it clear that this legislation in no way supersedes or limits any other law, whether State of Federal. 10. The remainder of the legislation proposed by S. 2908 appears adequate and no comment is made thereon. If the legislation proposed by this bill is enacted with the provisions recommended herein, the administration and enforcement thereof by the Federal Trade Commission would accord with administrative procedure under comparable statutes, namely, the Federal Trade Commission Act, the Wool Products Labeling Act and the Fur Products Labeling Act. In addition, such legislation would provide for injunctive relief as well as for actions in rem for seizure and condemnation of highly flammable articles of wearing apparel, fabrics and household products upon application by the Commission to the district courts in such instances where protection of the public interest requires such emergency measures. Such legislation would also provide for criminal proceedings against willful violators thereof. The several administrative and enforcement provisions incorporated are of the type customarily found advisable and appropriate in legislation of this character, and experience has proven such procedure most effective and of a type least burdensome. The administration thereof can be readily integrated with the Commission's present duties and functions. In conclusion, the Commission expresses the view that legislation of the type proposed by S. 2918, with the necessary revisions, is needed for the protection of the public interest, as well as for the protection of industry and trade. In connection with the committee's hearings and study of this bill, doubtless other points may arise and need attention. The Commission wishes to advise that members of its staff will be placed at the committee's disposal to assist in their consideration and in any other manner the committee may deem advisable. By direction of the Commission. Sincerely yours, JAS. M. MEAD, Chairman. P. S.-In view of the fact that passage of the bill would confer additional duties upon the Commission for which funds are not available, we further recommend that there be added to the bill a provision of the customary type authorizing the enactment of such appropriations as are necessary and reasonably required to place the measure in operation and afford satisfactory enforcement. I wish also to state that due to time limitations, we have been unable to secure the advice of the Bureau of the Budget respecting the relationship of the proposed legislation to the program of the President. J. M. M. THE SECRETARY OF COMMERCE, Hon. EDWIN C. JOHNSON, Chairman, Committee on Interstate and Foreign Commerce, United States Senate, Washington, D. C. DEAR MR. CHAIRMAN: This letter is in further reply to your communication of March 28, 1952, requesting the views of this Department concerning S. 2918, a bill to prohibit the introduction or movement in interstate commerce of articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals, and for other purposes. S. 2918 would prohibit the manufacture or sale in commerce, or the introduction, transportation or causing to be transported for sale or delivery after sale in commerce of articles of wearing apparel (except hats, gloves, and footwear) and fabrics intended for use in the manufacture of such apparel so highly flammable as to be dangerous when worn by individuals. The standard of flammability to be used would be that standard established by the Commodity Standards Division of this Department and promulgated by the Secretary. The provisions of the bill would not apply to common carriers; to persons manufacturing, shipping, selling or offering to sell for export to a foreign country any fabric or material made in accordance with the specifications of the purchaser; to convertors, processors or finishers performing a contract for a person subject to the act; or to shipments made for the purpose of processing the fabric or article to render it not highly flammable. This Department believes that many articles in addition to those specified should be included in the provisions of the bill. We recommend that the bill be amended to remove the exemption of hats, gloves, and footwear and of all fabrics not intended for use in wearing apparel. Such items as baby blankets, drapery materials, and upholstery fabrics, if highly flammable, present a grave danger to the unsuspecting citizen. It also would appear to be extremely desirable to remove the exemption for hats, gloves and footwear, since such articles, if highly flammable, could be extremely dangerous to children and other persons unable to remove them easily. Hardship or serious difficulty to manufacturers would not appear to result from such extension of the coverage of the bill, since the requirements for testing and performance are moderate. The bill should provide clearly for the establishment of different standards to be used to meet the special problems for various materials when the Secretary deems it advisable. Section 4 should be revised to read: "Any article of wearing apparel or fabric which, when tested under the conditions and in the manner prescribed in a standard designated by the Secretary of Commerce for this purpose, exhibits rapid and intense burning as defined in such a standard shall be deemed so highly flammable under the provisions of this act as to be dangerous when worn by individuals." The bill as presently written relies on the commercial standard for flammability of fabrics. These commercial standards, which are voluntarily developed by industry with the cooperation of the Department of Commerce and then promulgated by the Secretary, are not wholly creations of the Government. The responsibility for their drafting is joint, with industry and Government participating. Modification of such a standard can be accomplished only with approval of industry. This is not the type of a standard which should be relied upon in a criminal statute. The language proposed above would eliminate this difficulty. The safeguards of the Administrative Procedure Act would appear to be applicable to the designation of the standard by the Secretary under the proposed wording. If this proposal is accepted, subsection 2 (f) should be deleted. Page 8, line 13, after "ness" the words "as a common carrier or contract carrier" should be inserted before the semicolon to make certain that the exemption of common or contract carriers applies only to their operations as a common carrier or contract carrier. The exemption of items which are too hazardous to be allowed in domestic commerce when manufactured for export pursuant to specifications of the foreign purchaser appears to be questionable. If amended to conform to these suggestions, this Department would recommend the early enactment of this legislation. We have been advised by the Bureau of the Budget that there would be no objection to the submission of this letter. If we can be of further assistance in this matter, please call upon us. Sincerely yours, THOMAS W. S. DAVIS, Acting Secretary of Commerce. COMPTROLLER GENERAL OF THE UNITED STATES, Hon. FDWIN C. JOHNSON, United States Senate. MY DEAR MR. CHAIRMAN: I have your letter of March 28, 1952, enclosing a copy of S. 2918, Fighty-second Congress, entitled "A bill to prohibit the introduction or movement in interstate commerce of articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals, and for other purposes," and inviting any comments I may care to offer concerning the proposed legislation. Companion bills, H. R. 7256, H. R. 7257, and H. R. 7258, Eighty-second Congress, are presently before the House Committee on Interstate and Foreign Commerce. 8 Since the enactment of this bill would not affect any of the functions of the General Accounting Office, I have no comment to make other than to say that the purpose sought to be accomplished appears to be in the public interest and thus favorable action would be desired. Sincerely yours, FRANK P. YATES, Acting Comptroller General of the United States. The CHAIRMAN. Mr. Henry Miller, Assistant General Counsel, Federal Trade Commission. STATEMENT OF HENRY MILLER, ASSISTANT GENERAL COUNSEL Mr. MILLER. Mr. Chairman, my name is Henry Miller. I am Assistant General Counsel of the Federal Trade Commission in charge of industry cooperation. I am very happy to have the opportunity to appear before this committee in considering this legislation and I wish to say on behalf of the Chairman of the Commission that we will offer every assistance possible to you and the committee. This bill, S. 2918, is directed to a problem which is of acute concern from the standpoint of due protection of the consuming public. Highly flammable fabrics and garments have come on the market from time to time, and cases of serious bodily injury and even death from burning have been suffered by unsuspecting purchasers and consumers. The need for effective governmental action to protect the public is widely recognized. It is my understanding that this bill is sponsored or supported at least in principle by virtually all segments of the textile industries and trades. Such constitutes not only wide recognition of the need and desirability of legislation on the subject but it is also indicative of a spirit of cooperation among the businesses concerned toward working out legislation that will constructively serve the public good. The bill is directed to outlawing the introduction or movement in interstate commerce of articles of wearing apparel and fabrics which are so highly flammable as to be dangerous when worn by individuals. Respecting the general field of textile merchandise and in line with what we understand the general objectives of the bill to be, the Federal Trade Commission strongly favors enactment of the proposed legislation in such form as will afford an effective means of protecting consumers from the hazards of personal injury due to the highly flammable character of articles which they wear on their persons and textile articles which, under conditions involved in their use in the home, endanger the safety of the individual because of their highly flammable character. Actual experiences in the past show that the risks and possibilities of bodily harm suffered by consumers are severe and of the most dangerous type. The great wave of burnings and even deaths which children have suffered when wearing highly flammable cowboy playsuits is still within the memory of many of us. Burning cases of most distressing character have also resulted from other fabrics and garments. In 1947 Dr. Bonnet, appearing as a member of the technical committee of the National Dry Goods Association and for the American Viscose Corp., a highly respected and well-informed |